Citation Nr: A21019059 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 201125-123562 DATE: November 30, 2021 REMANDED Service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from February 2000 to June 2002 with service in Kuwait. The rating decision on appeal was issued in July 2019 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In June 2020, the Veteran filed a VA Form 20-0996 Decision Review Request: Higher-Level Review (HLR) and requested a higher-level review of the July 2019 rating decision. In October 2020, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the initial rating decision. In November 2020, the Veteran disagreed with that decision and submitted VA Form 10182 Decision Review Request: Board Appeal (Notice of Disagreement), in which he opted for a Board hearing. The Board may only consider the evidence of record at the time of the AOJ decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). In August 2021, the Veteran testified before the undersigned Veterans Law Judge at a video conference hearing. A transcript of the hearing is of record. Service connection for sleep apnea is remanded. The Veteran seeks service connection for sleep apnea. A December 2009 VA examination by a VA examiner regarding the Veteran's nose, sinus, larynx, and pharynx diagnosed the Veteran with dyspnea/dysphagia and opined that these diagnoses were likely related to the Veteran's exposure to human waste fumes and dust during service. October 2015 VA medical records diagnosed sleep apnea and noted that the Veteran was exposed to burn pits during service in Kuwait. A June 2019 examination by a VA examiner opined that the Veteran's sleep apnea was less likely than not caused by his service because his April 2002 sleep study displayed normal results and his 2009 sleep study was far after the Veteran left service. She stated that the Veteran's snoring could be due to upper airway obstruction, markedly increased tonsillar issue, but then the sleep study is negative for sleep apnea. However, the June 2019 examiner did not consider whether the Veteran's burn pit and other environmentally hazardous exposure during his service in Kuwait caused his sleep apnea. As such, the Board finds an updated VA examination is needed to correct this pre-decisional duty to assist error. The matter is REMANDED for the following action: 1. Forward the Veteran's claim file to an appropriately qualified examiner to provide an addendum medical opinion regarding the nature and etiology of the Veteran's sleep apnea. An in-person examination need not be scheduled unless deemed necessary by the examiner or otherwise required by the evidence. The examiner must review the claims file in its entirety, to include a copy of this REMAND, and the review should be noted in the examination report. The examiner should provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea is related to his active-duty service, to include exposure to environmental hazards such as burn pits in Kuwait. The examiner is reminded that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. (Continued on the next page) The examiner is advised that the lack of documented treatment for the claimed disability during service cannot serve as the sole basis for a negative finding. The examiner is advised that the Veteran is competent to report his medical history and must be considered and weighed in making the determination as to whether a nexus exists between the claimed diseases and military service. The examiner must provide a complete rationale for any opinion expressed. If the examiner is unable to provide an opinion without resorting to speculation, he or she should fully explain why that is so. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ahuva D. Sunshine The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.